Unmarried Couples and PACS: Inheritance and Protection

What a PACS partner inherits: nothing, by default

A PACS partner inherits nothing automatically. Whatever the couple's commitment, however long they have lived together and however many assets they have built up in common, a French civil partnership (pacte civil de solidarité, or PACS) gives the survivor no right at all to the deceased partner's estate unless a will has been made. This is the single most important fact for an unmarried couple to understand, and it takes almost everyone by surprise.

The reason lies in what a PACS is and is not. Since 1 January 2007 the partners to a PACS are subject to a separation-of-property regime (régime de séparation de biens), not a regime of joint ownership: each partner remains the owner of the assets they held before the PACS and of those they acquire during their life together, and, unless the agreement provides otherwise, each keeps the administration, enjoyment and free disposal of their personal property (Article 515-5 of the Civil Code). Assets that neither partner can prove belong exclusively to them are presumed to be held in undivided shares (indivision), half to each. The couple can opt into a regime of undivided ownership for property they acquire, but the default is strict separation. Partnerships concluded before 1 January 2007 followed different rules, under which assets acquired for value during the PACS became undivided property of the partners; those older couples can switch to the current regime by an amending agreement.

Separation of property governs who owns what while both partners are alive. It says nothing that helps the survivor on death — and that is the point. A PACS creates no succession right between the partners, whether in full ownership or in usufruct (the right to use an asset and take its income for life). The survivor is, in the eyes of the law of intestate succession, a stranger to the estate. If a partner dies without a will, the estate passes by the ordinary rules of legal devolution — to the deceased's children, or failing them to their parents, siblings and more distant relatives — and the surviving partner takes no share of it whatsoever. They are not an heir; they cannot claim a reserved portion; they can be required to leave a home that the deceased owned. A married surviving spouse, by contrast, is always an heir where the couple were not divorced, and is even a reserved heir for one quarter of the estate where the deceased leaves no children. A PACS gives none of that. The civil partnership is a strong protection during life and, on the tax side, on death — but on the civil, inheritance side, it protects nothing at all unless the partners take deliberate steps.

Why a will is essential for a partner

Because a PACS creates no succession right, a will is always necessary to allow a partner to inherit. There is no way around this: the only route by which a surviving partner can take any part of the deceased's estate is a valid will (testament) that leaves it to them. Without one, the survivor receives nothing from the succession, no matter how the couple thought of their arrangements.

The will, however, does not put the partner in the same civil position as a spouse. A married person can leave their spouse an enlarged share through the special disposable portion reserved to a spouse (quotité disponible spéciale entre époux), which can exceed the ordinary freely disposable portion and shelters the spouse against an action to cut the gift back. A PACS partner has no such advantage. A partner can only be left the ordinary freely disposable portion (quotité disponible ordinaire) — the part of the estate that French law leaves any testator free to give to whomever they choose — and a gift beyond it can be reduced. In practice this means that where the deceased partner leaves children, those children are reserved heirs whose share cannot be given away: with one child, half the estate is reserved; with two children, two thirds; with three or more, three quarters. The partner can be left only the balance. Only where the deceased leaves no descendants and no other reserved heir can the whole estate be left to the survivor.

Draft the will now, not later

The gap between a spouse's automatic protection and a partner's reliance on a will is the reason estate planning for an unmarried couple has to be done deliberately and in advance. A couple who have not married but want the survivor to keep the family home, or to receive a defined share of the estate, must say so in a will — and, as set out below, must also think about the temporary right to stay in the home, the preferential allotment of the property, the tontine clause on a joint purchase, and lifetime gifts. None of these operate by default. Each has to be put in place while both partners are alive and able to act. This form of transmission is, at least, strongly favoured on the tax side: a PACS partner who inherits under a will pays no inheritance tax, as the next section explains.

The inheritance-tax exemption for PACS partners

A PACS partner is completely exempt from inheritance tax. Whatever the survivor inherits under the deceased's will — the family home, a share of the estate, a legacy of money or investments — passes to them free of any transfer duty on death. The partners to a PACS (including those bound by a civil partnership concluded abroad) are exempt from transfer duties on the assets they receive by death (Article 796-0 bis of the General Tax Code). On this point a PACS partner and a married spouse are treated identically: both inherit tax-free.

This exemption is the decisive advantage of concluding a PACS rather than simply living together, and it transforms the value of a will. Because a partner who is left assets by will pays no tax on them, a couple who take the two steps together — enter a PACS and make reciprocal wills — achieve almost the whole of what marriage would give on the tax side, at least so far as the survivor is concerned. The will supplies the civil right to inherit that the PACS does not; the PACS supplies the tax exemption that a bare will to a stranger would not. Neither alone is enough. A will leaving the estate to a partner who is not in a PACS would be taxed at the punitive rate reserved for transfers between people who are not related — 60% — because an unmarried, un-PACSed partner is treated as a stranger for tax. A PACS without a will leaves the survivor with the exemption but nothing to apply it to, because they inherit nothing. Put the two together and the survivor inherits, under the will, free of tax.

The exemption is worth stressing because it is often confused with the civil rules. Being exempt from inheritance tax does not make a partner an heir; it only means that, once a will has made them an heir, they pay no duty. The civil question (does the partner inherit at all?) and the fiscal question (how is what they inherit taxed?) are separate, and a PACS answers only the second in the survivor's favour. That is why the professional advice for an unmarried couple is always the same: the PACS and the will go together.

The partner's temporary housing right

A surviving PACS partner has a temporary right to stay in the couple's home for one year after the death. Where one partner dies, the survivor may, for the year following the death, remain free of charge in the dwelling that served as their actual home, provided they were living there at the time of death, together with the furniture in it (Article 515-6, paragraph 3, of the Civil Code). The right applies on the same terms as the one-year right enjoyed by a surviving spouse (Article 763), and it can even be exercised over a home that belonged to the deceased partner alone. Where the home is rented, the rent the surviving partner pays over that year must be reimbursed to them by the heirs.

There are, however, two important limits that distinguish the partner's right from the spouse's, and both cut against the survivor. First, the partner's temporary right of occupation is of a successoral nature and is not a rule of public order. That is a technical way of saying that, unlike the spouse's one-year right — which is a public-order protection that no will can remove — the partner's one-year right can be taken away. Each partner can deprive the other of it by will. If the deceased partner made a will leaving the home to their children, or excluding the temporary right, the survivor can be turned out. The spouse's equivalent right cannot be defeated in that way. Second, and more significant in the long run, the surviving partner does not enjoy the life-long right of occupation (droit viager au logement) that a surviving spouse can claim. A spouse can convert the one-year right into a right to occupy the home for the rest of their life; a PACS partner cannot. After the year is out, the partner's protection ends.

The preferential allotment must be provided by will

Because the one-year right expires and there is no life right, the surviving partner needs a further, deliberate protection if they are to keep the home. When the period of the temporary right ends, the surviving partner of a PACS can be evicted. But — provided the deceased partner arranged it by will — the survivor may claim the preferential allotment (attribution préférentielle) of the home the deceased owned in whole or in part, and the heirs cannot object (Article 515-6, paragraph 2, of the Civil Code). The preferential allotment lets the survivor stay in the property and acquire, in priority to the other heirs, ownership of the whole home — or of the deceased partner's undivided share where the couple had bought it together. The condition is absolute: the right exists only if the deceased provided for it in a will. This is why the standard advice for a PACS couple who own or occupy a home together is that a will is indispensable, and that it should expressly provide for the preferential allotment of the home in the survivor's favour. Left to the default rules, the survivor has a year in the home and then nothing.

The tontine clause

A tontine clause is a way of ensuring that, when two people buy a property together, the survivor ends up owning all of it. A tontine (clause de tontine, or accrual clause) is a clause inserted in a joint acquisition contract which provides that the share of the first to die passes to the survivor, so that the last survivor is treated as the sole owner of the whole property from the outset. For an unmarried couple buying a home together, it is a powerful tool: on the first death, the survivor does not inherit the deceased's half — legally, they are deemed to have owned the whole property all along, and the deceased partner's heirs, including their children, have no claim to it. The clause therefore sidesteps forced heirship over that property, which a will alone cannot do.

The tax treatment of a tontine follows the relationship between the parties. Assets received under a tontine clause are treated, for tax, as transferred by way of gift to each beneficiary of the accrual, and are subject to inheritance tax according to the relationship between the deceased and the beneficiary, on the value of the share transferred (Article 754 A of the General Tax Code). For a PACS couple this is good news, because the accrual passing to a surviving PACS partner benefits from the same exemption from transfer duties on death that applies to any other inheritance between partners: where the property is worth more than the threshold discussed below, the accrual passes to the surviving partner free of transfer duty. The validity of an accrual clause is not affected even where the purchase was financed mostly by one of the parties to the tontine (Cass. civ. 1re ch., 14 December 2004, no. 02-11088).

The €76,000 main-home threshold

There is one exception to the gift-tax treatment, and it works in the couple's favour. By way of exception, transfer duty for value (droits de mutation à titre onéreux — the ordinary duty payable on a sale, not gift or inheritance tax) is due where the property bought jointly by two people is their common main home and has a market value below €76,000 (Article 754 A of the General Tax Code). In other words, only a modest main home — one worth less than €76,000 — is taxed as though it had been sold; and because that is transfer duty for value rather than inheritance tax, it side-steps the 60% rate that would otherwise apply between strangers. As soon as the property is worth more than €76,000, the exception falls away, and the accrual passes to a surviving PACS partner free of transfer duty on death under the exemption. For most couples buying a home of any real value, the practical effect is that a tontine on the main residence lets the survivor take the whole property with little or no tax — but the mechanism is technical, the clause has to be drafted into the purchase deed at the outset, and it has drawbacks (it is very hard to unwind if the couple separate), so it should never be used without advice.

Gifts between partners

A PACS partner can give the other partner up to €80,724 free of gift tax, and can do so again every fifteen years. For the assessment of gift duties, an allowance (abattement) of €80,724 is applied to the share received by a partner bound to the donor by a PACS (Article 790 F of the General Tax Code). For gifts made since 17 August 2012, that allowance renews every fifteen years. The planning point follows directly: it is advantageous to pass assets in stages, every fifteen years, without exceeding the allowance each time, so that a couple can move significant value from one partner to the other over the years entirely free of tax.

Lifetime giving is a useful complement to the will, not a substitute for it. A gift takes effect now and removes the asset from the donor's estate; a will takes effect only on death. Together they let a PACS couple shift wealth to the survivor both during life (through gifts within the allowance) and on death (through the will, tax-free under the exemption). There is one trap to avoid. The benefit of the €80,724 allowance is withdrawn where the PACS is both concluded and comes to an end in the course of the same calendar year — unless the partners marry each other, or one of them dies. A PACS entered into and dissolved within a single year is treated as if it had never given rise to the allowance. For a couple who genuinely intend to stay together, this is not a concern; it is an anti-abuse rule aimed at partnerships opened and closed to capture the allowance.

Gifts between partners still have to respect forced heirship. The €80,724 allowance is a tax figure; it does not enlarge the freely disposable portion. If the donor partner has children, a lifetime gift to the other partner comes out of the freely disposable portion and can be reduced if it encroaches on the children's reserve, exactly as a legacy would be. The allowance saves tax on what can validly be given; it does not change how much can validly be given. This is another reason estate planning for an unmarried couple with children is best handled by a notaire, who can size the gifts and the will together so that the survivor is protected as far as the reserve allows and no further.

Cohabiting partners (concubinage): the worst position

A cohabiting couple who have not entered a PACS or married are in the weakest position French law offers. Simple cohabiting partners (concubins) enjoy no particular advantage and are treated as strangers, notably as regards inheritance tax and the allowance on gifts. The survivor of a cohabiting couple is a stranger to the estate in every sense that matters: no automatic inheritance, no reserved share, no one-year housing right, no preferential allotment, and — the sting — no tax relief.

The civil position is the same as for a PACS partner without a will, only worse, because a cohabiting couple usually have not put the surrounding protections in place either. On death, the survivor inherits nothing unless there is a will; there is no temporary right to stay in a home owned by the deceased; and there is no preferential allotment. But the fiscal position is dramatically worse. Where a PACS partner who inherits under a will pays no tax, a cohabiting partner who is left assets by will is taxed as a stranger — with no allowance and at the top rate of 60% on everything received. A legacy of €100,000 to a cohabiting partner is taxed at 60% (that is, €60,000 of tax on €100,000). The same €100,000 left to a PACS partner is taxed at nothing. Between two people who love each other and share a life, the difference between concluding a PACS and not is, on these numbers, the difference between the survivor keeping the money and losing well over half of it.

The remedy is almost always to conclude a PACS

For a cohabiting couple, the practical conclusion writes itself. Concluding a PACS is a simple, low-cost step that converts the survivor from a taxed stranger into a fully exempt partner, opens the €80,724 gift allowance, and brings the one-year housing right and the possibility of a preferential allotment. It does not, on its own, make the survivor an heir — a will is still needed for that — but it changes everything about how the couple can protect each other. A cohabiting couple who want the survivor to be provided for, and who are not going to marry, should almost always enter a PACS and make wills. The alternative — doing nothing, or relying on a will alone without a PACS — leaves the survivor exposed to the 60% rate and, without a will, to receiving nothing at all.

Frequently asked questions about PACS and unmarried couples

Does a PACS partner inherit in France?

Not automatically. A PACS creates no succession right between partners, in either full ownership or usufruct, so a surviving partner inherits nothing under the ordinary rules of legal devolution. To leave anything to a partner, the deceased must have made a will (Article 515-5 of the Civil Code, and the rule that a will is required). Once a will is in place, the partner inherits what it leaves them — free of inheritance tax under Article 796-0 bis of the General Tax Code.

Do unmarried partners have inheritance rights in France?

No default inheritance rights. Neither a PACS partner nor a cohabiting partner is an heir under French intestate succession, and neither has a reserved share of the estate. Only a will can give an unmarried partner a right to inherit. A PACS partner then inherits tax-free, while a cohabiting partner without a PACS is taxed as a stranger at 60%. This is the central difference between an unmarried couple and a married one, where the surviving spouse is always an heir.

Is a PACS partner exempt from inheritance tax?

Yes, completely. A PACS partner — including one bound by a civil partnership concluded abroad — is exempt from transfer duties on the assets they receive on the death of the other partner (Article 796-0 bis of the General Tax Code). The exemption is the same one a married spouse enjoys. It only helps, though, where a will has actually left the survivor something to inherit, because the PACS itself gives no right to the estate.

What is a tontine clause?

A tontine (accrual clause) is a clause in a joint purchase deed providing that, on the first death, the deceased's share passes to the survivor, who is then treated as having owned the whole property from the start (Article 754 A of the General Tax Code). It lets an unmarried couple ensure the survivor keeps a jointly bought home, outside forced heirship. The accrual passing to a surviving PACS partner is free of transfer duty on death, except that a common main home worth under €76,000 attracts transfer duty for value instead.

How do I protect my partner in France?

Take three steps together: conclude a PACS, make a will, and consider a tontine on any home bought jointly. The PACS gives the survivor the inheritance-tax exemption and the €80,724 gift allowance; the will gives them the actual right to inherit and can provide for the preferential allotment of the home; the tontine can secure a jointly owned property for the survivor outside the estate. None of these operate by default, and how far the will can go depends on whether there are children, so the plan should be built with a notaire.

Can a cohabiting partner without a PACS inherit tax-free?

No. A cohabiting partner (concubin) who is not in a PACS is treated as a stranger for tax: there is no gift allowance and any legacy is taxed at 60%. The remedy is almost always to conclude a PACS, which converts the survivor into a fully exempt partner and opens the €80,724 gift allowance (Article 790 F of the General Tax Code). Without either a PACS or a will, a cohabiting survivor inherits nothing and, with a will alone, keeps less than half of what is left to them.

How our French lawyers help with PACS and partner protection

An unmarried couple in France are protected far less than they assume, and the gap only shows up on the first death, when it is too late to fix. We advise PACS partners and cohabiting couples on exactly what the survivor would take today, and on how to change it — the will that makes a partner an heir, the preferential allotment that keeps the family home, the tontine on a joint purchase, and the lifetime gifts that move value tax-free within the €80,724 allowance. Where a couple are cohabiting without a PACS, we set out plainly what concluding one saves, and structure the will and gifts so the survivor is protected as far as forced heirship allows.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. How French inheritance law applies to an unmarried couple depends on the family, the assets, their location, and any will, PACS or tontine clause. Contact our French lawyers for advice on your situation before acting.